President defends domestic spying

Some legal experts say Bush broke law on scale that could warrant impeachment.

Some legal experts say Bush broke law on scale that could warrant impeachment.

December 21, 2005|RON HUTCHESON Knight Ridder Newspapers

WASHINGTON -- A defiant President Bush said Monday that he didn't need explicit permission from Congress or the courts to establish a secret domestic surveillance program to eavesdrop on suspected terrorists. At a White House news conference, Bush expressed outrage that the program had become public and vowed to continue it. The president said his constitutional power as commander in chief and the congressional resolution that authorized the use of military force against terrorists gave him the authority to order the eavesdropping. If anything, his explanation only fueled more anger over the domestic spying, and some legal experts asserted that Bush broke the law on a scale that could warrant his impeachment. "The president's dead wrong. It's not a close question. Federal law is clear," said Jonathan Turley, a law professor at George Washington University and a specialist in surveillance law. "When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors." There's little enthusiasm for impeachment in the Republican-controlled Congress, but few lawmakers have rallied to Bush's defense. Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, has promised a full investigation into the surveillance program early next year. Two Democratic lawmakers who'd been briefed on the program well before it became public last week accused Bush and his advisers of withholding key details. Sen. John Rockefeller, D-W.Va., and former Sen. Tom Daschle, D-S.D., said they had objected to Bush's plan, but had no way to stop it without exposing classified information. Bush went on the offensive against his critics as other administration officials provided new details of the surveillance program and the legal rationale behind it. Inside "My personal opinion is, it was a shameful act for someone to disclose this very important program in a time of war," Bush said. "The fact that we're discussing this program is helping the enemy." The program, run by the top-secret National Security Agency, targets telephone conversations and e-mails from this country to suspected terrorists overseas. Bush authorized the eavesdropping after the terrorist attacks on Sept. 11, 2001, to bypass a federal law that requires court approval for domestic surveillance. "We've got to be fast on our feet, quick to detect and prevent," Bush said. "Do I have the legal authority to do so? The answer is, absolutely." Legal experts and congressional Democrats disdained Bush's legal reasoning. "I can't believe anyone sincerely believes these arguments," Turley said. "This is really beyond the pale." "Where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?" asked Sen. Carl Levin, D-Mich., the top Democrat in the Senate Armed Services Committee. Critics challenged Bush's assertion that the legal framework for domestic surveillance is too cumbersome. The 1978 Federal Intelligence Surveillance Act created a special secret court to approve domestic surveillance in cases that can't be treated as normal criminal investigations. The court rarely rejects requests for such surveillance. The law, enacted in response to illegal wiretaps during the Nixon administration, includes emergency provisions that let investigators seek court approval up to 72 hours after the surveillance starts. "He does have to move quickly, at times. And that's why the FISA law says, 'Move first and then notify the court and seek their authority afterwards,"' Levin said. At a briefing for reporters before Bush's news conference, Attorney General Alberto Gonzales and Gen. Michael Hayden, deputy director for national intelligence, said the emergency provisions are inefficient. Gonzales, who served as White House legal counsel before moving to head the Justice Department, cited two sources for Bush's legal authority -- the Constitution and the 2001 congressional resolution that authorized the use of military force in response to the Sept. 11 attacks. Article II of the Constitution declares that "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." The congressional resolution authorized Bush "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks ... " Skeptics questioned whether either document gave Bush the right to bypass federal laws restricting the government's use of electronic surveillance. "Does the resolution or Article II repeal every civil liberties law ever adopted?" asked Yale law professor Akhil Reed Amar, an authority on the Constitution and the Bill of Rights. "The resolution is focused really on enemies abroad. The question is whether that's carte blanche for surveillance at home." It isn't known how many Americans were targeted by the secret surveillance program, or whether they included scholars, journalists and others who may have had contacts with extremists but no ties to terrorism. To support his view, Gonzales cited last year's Supreme Court ruling involving Yaser Esam Hamdi, a U.S. citizen who challenged his detention as a terrorist combatant. The court concluded that the resolution authorizing force provided sufficient authority for the detention. But the justices also declared that Hamdi and other U.S. citizens whom the administration classified as enemy combatants couldn't be denied access to the courts. "We have long since made it clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Justice Sandra Day O'Connor wrote for the court majority. "Whatever powers the U.S. Constitution envisions for the executive (branch) ... it most assuredly envisions a role for all three branches when individual liberties are at stake."